Color and the Court

By

September 25, 2000

The likely impact of the next few Supreme Court appointments on civil rights and racial justice is momentous. So much hangs in the balance that one feels simultaneously energized to make the upcoming election count, while despondent because so much struggle has nevertheless left progress so contingent on this election. Many people erroneously assume that racial progress in America is somehow inevitable. Put simply, however, the nation's moral compass is not too keen an instrument as regards minority rights. It is frequently misdirected by the flux of political passions and majority self-interest, so that fundamental matters of vision, values and ends are hotly contested.

The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word. One might expect that nonpolitical courts would be powerful engines for that project, but America's moral confusion is perhaps more apparent in the courts than in other precincts. Moreover, the next four years are certain to see a series of vital issues come before the High Court, and the outcomes are up for grabs this November.

The Constitution's principal tool for racial and ethnic justice is the equal protection clause of the Fourteenth Amendment. Longstanding Supreme Court doctrine interprets that clause to subject government decisions making use of race to a high standard of justification termed "strict scrutiny." This standard requires that the government's action serve a "compelling interest" and be "narrowly tailored" to fit that interest. Similar dilemmas of justification and proof occur in civil rights disputes that involve antidiscrimination laws rather than the Constitution itself.

Many recent affirmative action and voting rights decisions have been decided by a 5-to-4 vote against minority plaintiffs or local governments attempting to employ progressive race-conscious policies to combat discrimination or promote inclusion of one form or another. Justice Sandra Day O'Connor, who's written the majority opinions in some of the crucial affirmative action cases, has often included language that purports to moderate the views of the more conservative members of the Court. For example, in Adarand Constructors, Inc. v. Peña (1995), which involved set-asides in federal contracts for minority contractors, she made clear that the application of the strict scrutiny test would not be fatal to all federal affirmative action programs involving race-conscious policies, but that the one in Adarand seemed to trouble her. In her concurring opinion in Bush v. Vera (1996), she provided support for the proposition that complying with the Voting Rights Act could constitute a compelling governmental interest that could partially satisfy the first part of a court's strict scrutiny analysis of race-based Congressional district lines. And in Miller v. Johnson (1995), she insisted that while race cannot be a predominant factor in drawing election district lines, absent a compelling interest it may in at least some circumstances be one among other factors, such as protection of incumbents. But just not the one in Miller.

Justices Antonin Scalia and Clarence Thomas have often presented concurrences that would go further than the majority opinions by eliminating any form of race-conscious policy. In Adarand, Scalia largely ignored the country's long history of racial discrimination by equating the "way of thinking" that caused slavery and racial animosity with efforts to remedy racial discrimination through affirmative action. Similarly, Thomas's concurrence in the Adarand case called affirmative action "noxious" and "government-sponsored racial discrimination." In another context, Holder v. Hall (1994), a voting rights case, the concurring opinion of Justices Thomas and Scalia suggested an extraordinarily narrow interpretation of the Voting Rights Act that would limit it to the most egregious individual denials of franchise. As the four dissenters noted, such a narrow position was radical and would have required the overturning or reconsideration of at least twenty-eight previous Supreme Court decisions.

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So as we undertake the massive Congressional, state and local redistricting flowing from the census 2000 results, the state of the law seems to be that majority-white districts can be drawn in any shape or fashion with virtual impunity. Majority-minority districts are subjected to strict scrutiny if they look funny to the Court. The Fourteenth Amendment and the 1965 Voting Rights Act never contemplated imposing heavier burdens on minorities in achieving democratic representation, but that's where the Rehnquist Court has left us. In the coming round of postcensus litigation, things could well get worse.

Several other constitutional developments are likely during the next presidential administration: First, the Court is likely to decide whether promoting diversity in education is a compelling governmental interest for strict scrutiny purposes. This issue, which now divides the lower courts, is critically important on thousands of campuses that currently use some form of race-conscious affirmative action in either admissions, financial aid or faculty hiring. It is also important, however, in elementary and secondary schools. Districts nationwide are struggling in policy meetings and lawsuits to understand their obligations and their discretion to combat racial segregation in our schools. Rehnquist-era rulings by the Supreme Court have opened a flood of court actions that, combined with segregated residential housing patterns, have served to reverse the progress toward integration and have brought a growing trend toward racial isolation, which correlates with an increasing number of high-poverty schools. This inevitably makes more difficult our efforts to improve educational achievement and knit the social fabric required to build one prosperous nation, in which we celebrate our differences as a source of richness and strength.

A ruling that racial diversity is not a compelling interest could occur under the current Court membership, depending on whether Justice O'Connor votes her conservative record or moderate rhetoric. With new Bush appointees, the result seems all but certain, and institutions and communities across the nation will be forced to set out on a different path, compass askew.

A second major development, however, might also threaten the rationale for policies to remedy discrimination. If the Scalia/Thomas perspective commands a solid majority, then the Court would narrow the grounds for race-conscious remedies, limiting them to specific instances of intentional discrimination today or in the very recent past. They might as well demand a photograph of racial animus dripping from the lips of some identifiable perpetrator to meet their solidly conservative test of strict scrutiny.

Finally, the Court will likely face cases in education, employment, healthcare and criminal justice in which minority plaintiffs will offer overwhelming evidence of disparate harsh effects from some policy–whether a high school exit exam or criminal sentencing–and demand that the defendants meet a high standard to justify racial consequences of their actions. Will the courts continue to leave the door open so that such disparities can, in some cases, be considered evidence of discrimination requiring remedy? Many observers fear that under the current Court, these principles are hanging by a thread.

In sum, the usual Court majority in civil rights cases has been composed of Chief Justice Rehnquist and Justices O'Connor, Scalia, Thomas and Kennedy. The usual dissenting minority has been composed of Justices Stevens, Souter, Ginsburg and Breyer. Focusing on the four Justices often mentioned as potential retirees, if a President George W. Bush were to replace Justice Ginsburg, a Clinton appointee, he will confirm and accelerate the drift away from judicial solicitude for efforts to eliminate the vestiges of racial caste. Much the same will be true if Bush replaces Justice O'Connor's swing vote with a more conservative voice, because the hard-edged conservatism of the Scalia-Thomas faction would be strengthened. Their sweeping, close-the-door concurring opinions would become majority statements of doctrine, rather than the portentous minority saber-rattling they are now. And the Court would more aggressively scan the lower-court dockets seeking cases to review in order to make or confirm conservative doctrine. By contrast, a President Al Gore, given an opportunity to replace Rehnquist or O'Connor, could not only keep the opportunity door ajar but also move to erode the dispiriting Rehnquist-Reagan era retrenchments.

For minority communities that have faced difficulty over the years electing representatives of their choice, feeling that their votes might matter little if at all, the stakes on the Supreme Court make the get-out-the-vote message this fall obvious: You now have a vote. Use it or lose it.